Matos v City of New York

Matos v City of New York 2017 NY Slip Op 07231 Decided on October 17, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2017
Tom, J.P., Richter, Andrias, Gesmer, Singh, JJ.
309441/09 4712N 4711

[*1] Efrain Matos, Plaintiff-Respondent,

v

The City of New York, Defendant-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Damion K. L. Stodola of counsel), for appellant.

Stecklow & Thompson, New York (David Thompson of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered June 9, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to vacate his note of issue, and order, same court and Justice, entered January 19, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to compel defendant to comply with outstanding discovery demands, unanimously affirmed, without costs.

The motion court providently exercised its discretion in vacating plaintiff's note of issue where plaintiff's former counsel made a material misstatement that discovery was complete. A note of issue should be vacated where "it is based upon a certificate of readiness that incorrectly states that all discovery has been completed" (Nielsen v New York State Dormitory Auth., 84 AD3d 519, 520 [1st Dept 2011]). Since discovery was not completed, the motion court correctly vacated the note of issue (see Gomes v Valentine Realty LLC, 32 AD3d 699, 700 [1st Dept 2006]; Cromer v Yellen, 268 AD2d 381 [1st Dept 2000]). Upon vacatur of the note of issue, the case was restored to its pre-note of issue status (see Tejeda v Dyal, 125 AD3d 578 [1st Dept 2015]). Accordingly, the court properly granted plaintiff's motion to compel defendant to comply with outstanding discovery demands.

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 17, 2017

CLERK